Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Friday, May 09, 2008

Cedric Benson learns there are some things in life Mom can't help you with: Like police brutality

I don't frequently blog about celebrity crime cases, but the story of Chicago Bears running back Cedric Benson's run in with officers from the Lower Colorado River Authority appears to have more dramatic twists the more we learn about it.

Benson was a star at UT Austin but has been a bust on the field in Chicago, so his legal troubles aren't earning him much love among Windy City sportswriters or fans. But since I still remember Benson's Texas career fondly (and as a Cowboys fan, suffer no bitterness regarding the Bears wasting their #4 draft pick on him in 2005), I wanted to highlight some of the oddities about the case that are slowly creeping out and casting doubt on the original story put out by LCRA.

First, I was as curious as Jamie Spencer exactly how they perform a field test "to prove his sobriety while he is still standing on his boat. While it’s on the water. Moving around. Waves underneath the boat." That seems like an inexact science, at best!

Then we learn that the accounts from other witnesses cast a different light entirely on the event. One scared person on the boat actually called 911 to report Benson was being abused by police! The Sporting News reported:

Elizabeth Cartwright, a 22-year-old friend of Benson's from the University of Texas, told the newspaper, "I called my dad and told him, 'Call 911, my black friend is getting beaten up by police on Lake Travis.' It's more what I heard than what I saw. I have never heard or seen Cedric that scared."

Unaware the friend in question was Benson, Jeff Cartwright called 911 and told the dispatcher that police "were beating up a black kid on Lake Travis," the Tribune reports.

Elizabeth Cartwright has written her version of events and wants to submit her account as evidence supporting Benson's claims that he was mistreated by authorities. Benson is scheduled to appear in Travis County Court on May 19.

Lower Colorado River Authority officers said Benson failed a sobriety test while operating a 30-foot boat on Lake Travis near Austin, Texas, and resisted arrest before being hit with pepper spray, Travis County Sheriff's Department spokesman Roger Wade said Sunday.

Benson was released from jail early Sunday on a $14,500 bond. The charges are class B misdemeanors, each punishable by up to six months in jail and a $2,000 fine.

Cartwright, an English major at UT, said she and her fiance had been boating with Benson about six times this spring and each time the Lower Colorado River Authority pulled them over for a safety check.

She said Benson was irritated when the police approached the boat Saturday because of the number of times he has been stopped on Lake Travis.

After the boat passed a safety inspection, Benson was asked to step into the LCRA boat for a sobriety test.

The police say Benson smelled "strongly" of alcohol, became "cocky" and needed to be forcibly removed from his boat.

Cartwright says Benson had two drinks and was not drunk. She also says Benson screamed after being pepper-sprayed, begging his mother, who was in the boating party, for help, saying, "Please stop, Mom, make them please stop."

His mother was on the boat? How drunk do you really suppose the guy was riding around with his Mom! An unsympathetic Jay Mariotti in the Chicago Sun Times gives Benson's version of events:

Benson would avoid league punishment if he indeed wasn't drunk and didn't resist arrest. "I was not intoxicated. There was alcohol on the boat, and others were enjoying themselves, but I wasn't drunk," he told the Sun-Times earlier this week, adding that he was cooperative throughout the ordeal. His description of how he allegedly was dragged to a car, which hauled him to jail, is chilling.

"They kicked my feet out from under me and slammed my face down," he said. "They had a hose and were running it over my face. They were choking me and stuff, not with their hands but with the hose in my face. I couldn't breathe. I don't know if they did that because of the pepper spray, but I didn't ask them to put the hose in my face."

Obviously, someone here is lying, either Benson or the arresting officers. If we ever learn the actual truth, it will be inside a courtroom in several weeks ...

As it turns out, it's not just Benson's family and friends who say the LCRA cops crossed the line. KXAN-TV quoted another witness who gave this account of watching them drag Benson off the boat when they got to shore:

"It was uncalled for, it was ludicrous, no point for it," said Toby Patch.

Patch said what he saw at the Emerald Point Marina Saturday makes him distrust law enforcement.

"It seemed to me they were manhandling him a little bit," Patch said. "As they were taking him up the dock, they stopped, he said, ‘I am fine, I can continue walking,' and they put their legs behind his knees and knocked him over his knees and started hog-carrying him."

Then he said when the officers got Benson to the parking area, things really got out of hand.

I'm not a fan of administrative agencies like the Lower Colorado River Authority having their own police officers for precisely this reason. LCRA was created to operate the dam system along the Colorado River, not to operate its own police force. There's no good reason this function can't be performed by the Travis County Sheriff's Department.

Texas' Code of Criminal Procedure lists 32 different types of specialized police officers, in addition to municipal police and sheriffs. Indeed, Texas has more than 2,500 separate law enforcement agencies registered with the state, many of them not directly affiliated with a municipal PD or Sheriff. (For more background see this written testimony.)

As a rule, higher quality officers go into better paying municipal PDs, county sheriffs departments, or perhaps into federal employ. As a result, often the quality of officers in these peripheral agencies is quite low (and with commensurate pay and training). Even more problematic, there's just not enough high-quality supervisory talent to go around for all these little agencies.

If I were Benson I'd be searching for a top-notch plaintiff's lawyer as well as a criminal defense attorney. I think he's still got a future in the NFL - hell, I'd like to see the Dallas Cowboys pick him up, truth be told; football-wise, he's a stud running back who just wound up injured and in the wrong system. But if his pigskin career turns out to be a bust, perhaps he can make a pretty penny suing LCRA, which has pretty darn deep pockets.

Classic: Benson was quite a handful in college, and IMO he's got Priest Holmes level talent if he's in the right system, he's healthy, and has some blocking. With the Bears looking to get rid of him, I actually think that'd be a great pickup for Jerry Jones.

And rage, I don't wonder at all why Travis prosecutors send blacks to prison for drug crimes at 31 times the rate of whites. That's part of the reason I think the terms "liberal" and "conservative," terms which hark back to divisions based on the French Revolution, in the 18th century, actually have VERY little meaning today for modern politics, particularly in crime and punishment debates.

I take issue with the fact this whole ordeal smells like racial profiling, and indeed, rhymes with the Chester's Night Club Story and many others originating out of East Austin. My bet is that they'll drop the case because they had ample opportunity to call in a high profile suspect and have the cameras rolling once he hit the shore. If they didn’t, well it’s his word against theirs, and well, he was Cedric Benson in Austin, and well, we’ll think about that like we did when ole’ Willie Nelson got popped with that possession of Mary Jane (not the person but the substance), and well, our jury pull was slanted then as it will be now.

That pepper spray’s some bad shit. LCRA is using the same stuff used in TYC. His eyes were swollen in the booking photo because of it I'm sure. Hell, go post that picture you got from the DMN when Jim Hurley got sprayed with the same stuff. Remember that? lol!

How about a little salt with that peppa' Cedric! You'll be immune to it if you join the Cowboys!

I do agree that these special police agencies usually attract the lowest common denominator of officer talent.

As far as the physical stuff, when most non law enforcement people see an officer or officers struggling with a person, the tend to characterize it as, "the cops were beating the shit out of the guy." Yes there are Rodney Kings everywhere, but not all of them are.

"As a rule, higher quality officers go into better paying municipal PDs, county sheriffs departments, or perhaps into federal employ. As a result, often the quality of officers in these peripheral agencies is quite low (and with commensurate pay and training). Even more problematic, there's just not enough high-quality supervisory talent to go around for all these little agencies."

Grits, as is normal, I disagree with you, but this time on only a portion of what you say.

First, although you did not address this, Boating While Intoxicated is as serious as Driving While Intoxicated, especially considering the fact that there are no brakes on a boat, no designated lanes, etc. I assume that you would agree that persons who are BWI should be taken off the lake where they are a danger to others.

BWI sobriety tests are similar, yet different from DWI sobriety tests due to the nature of the contact. The officer normally will conduct a Horizontal Gaze Nystagnus (HGN) just as in a DWI, as this test can be conducted on water. The other two tests that are in the National Highway Traffic Safety Administration (NHTSA) standardized battery, the Walk and Turn (WAT) and the One Leg Stand (OLS) must be conducted on dry land, so they will not normally be conducted during the initial contact on the water. Instead, other tests that measure divided attention skills but that do not require balance will be conducted, such as the Alphabet Recital, Finger Count, Hand Pat, or the like. If the officer, based on these tests and other indicators, such as an odor of alcohol, slurred speech, etc, has sufficient grounds, they will take the suspect to land to perform the WAT and OLS. They will normally wait 20 minutes after landing, so that the suspect has a chance to get his ‘land legs’ back. A preliminary breath test may also be used at some point.

I obviously don’t know what happened in this specific case, but that is how it is normally done. I also don’t know if there is any video, etc. My initial impression and bias is to side with the cops, and when the story came out I did so. Of course the fact that the Whorns have been known (recently) more for their arrests than their graduation rates, factors into that also, and the level of discipline that Mac has instilled (or more accurately, failed to instill) in his players is well documented. His program is beginning to look like Switzer’s program in the 80s.

Those factors are not conclusive of course, and dependent on what witnesses have to say I could change my mind as far as this case goes.

I am also not a fan of some specialized police agencies, but not necessarily for the same reasons that you are. In many cases they have more education and decent pay, and can often get more in-service training than a city or a county (dependent on the size of the agency, etc). The problem is that the officers have no Chapter 143 protection, nor do they have any recourse to petty discipline or termination.

For the most part, I believe that the following agencies are normally comparable to similar sized city police and county sheriff’s departments, that they have the appropriate governmental and public oversight, and sufficient protections for the officers employed by the agency:

Major state agencies, such as DPS, TABC, Game Wardens, etc.County agencies, such as constables, DA investigators, etc.Arson investigatorsUniversity police at 4-year state schoolsAirport policeTCLEOSE and OAG investigators

Agencies that may or may not be comparable, dependent on the administration and structure of the department and the chief’s reporting chain. If there is not good oversight, then these types of agencies can both not protect the officer’s rights and can be non-responsive to the public.

School district policeCommunity college policeTransit police

These entities should not have police at all – they are not responsive to the public, may or may not have to comply with open records laws, and the officer’s have absolutely no rights or protections:

Also questionable are the specialized boards, such as the Dental Board, etc. If these areas need investigators, put the responsibility under the OAG or an Inspector General for all boards, not at each individual board.

Of course, Bluesman, nothing I said implies DWI shouldn't be applied to boats; that's another straw man, as you know.

To address an issue that's actually in the post, should Benson's boat have been stopped for a "safety check" six out of the last six times he took the boat out? That starts to sound like harassment to me, if it's accurate.

RE: Field Sobriety Tests, I'd encourage you to read some of the research Jamie Spencer has been citing recently. I don't know enough about the topic to discuss it, but I've seen a lot of interesting arguments being made lately (i.e., the last 3-4 years) about the tests' validity.

We're more or less on the same page regarding specialized police forces, at least for the first group you named (though I'm on the fence about 4-year universities). In my view, the second and third groups should NOT ever have their own police forces. They just perform different functions and there's not enough supervisory talent out there to run them well or accountably.

We definitely also disagree on Chapter 143, though I know you make your living because of it so I'll cut you some slack. ;) Chapter 143 is a mess, and has basically left departments unable to discipline bad cops effectively in all 73 cities that operate under it.

I've never understood why the vast majority of cops who don't commit serious misconduct support a statute that makes them all look bad by keeping the worst of the lot around in perpetuity. A small number of officers commit most police misconduct, but Chapter 143 and the unions protect those outliers from discipline in the name of the good guys. (And don't start with due process - 143 is riddled with intentional, designed pitfalls preventing discipline, e.g., disallowing consideration of officers' misconduct records in promotion decisions.)

From the outside, all the public sees is the union circling the wagons and protecting bad cops, who seem to get promoted up the ladder no matter what they've done (in Austin the poster child for this was Detective Hector Polanco, but there are many examples.) This contributes greatly, IMO, to schisms between the police and portions of the public, refinforcing media and public opinion dynamics that many officers (justly) think unfairly paint all of them with the same brush. Some of that misperception, though, is a self inflicted wound, and Chapter 143 greatly contributes to it. best,

Two years ago, I ended up on a criminal jury to decide a case of alleged driving while under the influence of marijuana. The jury watched the video of the sobriety test, and then the officer who administered it reenact all the little parts.

We concluded that it was the most ridiculous "evidence" we had ever seen and that not one of us, especially the older and less agile, could pass the thing cold-stone sober. We also decided that, it was so confusing and subjective, that cops could see anything they wanted in the results--and could confuse people enough during it that they would screw up.

We also concluded that the officer who stopped the guy and the one who administered the tests were damnable liars. They got up on the stand and testified that the defendant had never told them prior to the test that he had just had ear surgery (which he had) and that it had affected his balance. Both cops claimed he hadn't told them that.

Then the prosecutors played the video of the stop and the sobriety test. Sure enough, the man told them about his ear surgery and balance.

txbluesman, you can describe the test with all the terms of art and explanations from the pointy-headed experts you want. As far as I'm concerned, it's junk science, it's subjective and it can cause the arrests of innocents.

With regard to Benson, it appears that he was made subject to an "attitude adjustment" because he showed disgust for being stopped. I live at Lake Travis and I race sailboats. I hate those 30 foot speedboats and they stick out like sore thumbs on the lake. Also, I very rarely see black people on the lake. In this particular instance, I have to suspect that he was singled out--not only because of his muscle boat--but because he is black.

My experience with law enforcement who administer the field sobriety tests is that they are rarely doing so to help them decide whether or not to make an arrest for DWI. It is so obvious, watching a video tape, that the cops have already decided to make the arrest, and they are administering the FST for the purpose of gathering additional evidence.

The last DWI defendant I represented, in Austin, was in his 50s and blind in one eye. It was a night-time stop. The cops stood him on a concrete ramp going up from S. Lamar into a body shop garage, and had him do the one-leg stand, etc. What a farce.

You misunderstand me - I thought I clearly stated that I would assume that you agreed that DWI/BWI should be enforced.

That was not an attempt on my part to say that you did not agree with the offense in general, or that you supported drunk boating. It definitely was not intended to be a straw man...

As far as the stop of Benson's boat? I don't have a clue - I don't know enough about the facts of the case.

I'm aware that some DWI defense attorneys are banking on a witness for hire doctor that claims that the SFSTs are not valid - but I'm not aware of a court yet buying that argument (not saying it hasn't happened, I'm just not aware of it). I just laid out how they do the tests, and have no thoughts on the validity. If it is challenged by a peer-reviewed process, instead of someone with a financial stake in it.

On the 4-year public universities, I've met many very professional officers, although it is definitely more predominant at the larger universities, like UT, A&M, Houston, and NT (the 4 largest schools) than at the smaller ones, but I daresay that this would track with city PDs as well, the larger ones having a better chance of getting better officers (for the most part).

I can go either way on the second group - it just all depends on who the players are.

I have never understood why we let a private entity have their own police, with no public oversight, and I'm not sure why we need dental cops, so I'm against the last group.

I had a feeling you wouldn't agree with me on 143 - it could be improved, but I've seen too many cases of arbitrary decisions, of officers being thrown to the wolves for political expediency, so the officers, all officers, deserve some form of protection.

Lets make it better, but the officers have rights too - and they have to make decisions in split seconds.

I haven't spoken to a good cop yet that doesn't want the bad apples fired, but if you don't insist on the rights of one, then you'll lose on the good officers also.

Try and answer a question every once in a while, would ya? Since you showed up here you've been little more than an apologist for abuses of various rights. You're willing to forgive any state actor, regardless of how wrong they are, just because they have t make split decisions, or they're just god people at heart. You blatantly ignore the real issues, no mater how directly the questions are put to you.

You wouldn't happen to be Rosenthal in retirement would you? His drug addled responses to questions make about as much sense as yours.

It is not my fault that you cannot comprehend the words and the reference, so I'll explain it to you.

The Anglos that stole this country from the various Native American tribes got zero punishment, while my people were sent to reservations. The system still discriminates against tribal members.

Thus, when I said the punishment should be the same for Boating While Black, it means that there should be no punishment for being Black and operating a Boat.

I thought that it was fairly easy to understand. I'll try and use smaller words when responding to you in the future.

Exactly how is that being an apologist for abuses? I have not been an apologist for any rights violations, nor will I. I have stated that I have a bias in favor of the officers involved, and I freely admit that I do.

Grits has a bias towards Citizen Review Boards - it is what he spent a great deal of time working on.

Doran has a bias towards the defense side of the house - it's what he does.

I'm not sure how Fred is biased, but it's there somewhere.

All of us have biases, but I doubt that you can show me one place where I said that it was acceptable to violate constitutional rights.

The fact that I have a different take on the issue is not an indication that I am apologizing for civil rights violations, but it is an indication that there is a question on the standard to be used.

Doran, Fred, Grits and I all lay out our position, and we argue about it. That is what Doran and I do for a living, I'm not sure about Fred (it seems like he does, but who knows), and Grits publishes these arguments.

But hey Texas Bluesman, what about Benson being stopped and inventoried that last six times he's been out? I've been out probably as much as he and have a wake boat that jams U2 and I go right by LCRA and they never stop me? I'm white?

As far as your slight reference to being a Native American, and your statement that no white man ever suffered consequences when we "stole" this country, is flawed. A country, not a race, "stole" America. In fact, there was more than one. Ever been to Six Flags?

Do I need to worry about being a white man when you're on patrol? Racial profiling has no business in policing this state, and for that matter, in any business. Excellence has no color my friend.

I wasn't talking about only my question, genius. You retreat from rationalization to rationalization. Your "arguments" are nothing more than apologies for why state actors should get away with whatever they're doing.

Please show me one place where I said racial profiling was acceptable. One. Just one.

I was asked what the punishment should be for Boating While Black and I replied that it should not be punished. Where do you get that I therefore support it.

I have already said that I don't know the facts of this case and therefore can't really comment on it.

I have freely admitted that I'm biased towards cops - for obvious reasons - that is how I make my living, by advocating for them.

As far as you meeting me on patrol? It will never happen, unless you stop me. What part of my job are you not understanding?

Finally, it is not a slight reference to being Native American? It's not slight and in common language I would be known as a 'breed,' but in some parts of the county the terms are much more derogatory. You know nothing about my heritage or family history, yet you have the unmitigated gall to tell me what it was like?

Friend, I was born on the rez, as were my father and his father before him. My grandfather and his brothers were taken from their families and sent to Indian Schools, like Haskell and Carlisle to make them 'white' Indians. When they came back, they were told they had to leave the rez or they would never get a job - so they moved him to another rez, with another tribe, not of our people.

My ancestors were with Chief Oskosh when the Federal government wanted to move us from our home of centuries into the middle of nowhere in Minnesota. Other ancestors in the Choctaw tribe took the trail of tears.

I know that when the tribes took the government to court and won, the Indian Service moved them anyway. Don't try and tell me who did these things to us, I know what people did it.

I know very well who stole our land, and it wasn't the Spanish, or the French, or the Mexicans.

I know very well the treaties that were broken, and the abuses that my people suffered. I know who stole the timber from the rez and that when we sued the government to get the money back, they took away our tribal status and put our people into poverty, until we could regain it under Ada Deer.

I have cousins still living on the rez, that have to hunt to be able to put food on the table - and the white government wants to take those treaty rights away too.

I'm part Anglo or white, and I value my heritage there too, but don't try to give me a bunch of crap about what happened to my people - you don't even know my people, nor our history.

It was Anglos and whites that took our land, stole our timber, impoverished our people. You can call the argument flawed if you wish, but we know the truth.

Tx said: "Doran has a bias towards the defense side of the house - it's what he does."

Actually, that is incorrect on both counts.

I rarely practice criminal law these days. Criminals in my part of the State are simply too poor to support me. And I don't take a lot of appointed criminal cases, and plead them guilty, as tx or someone else opined a week or so ago on another thread. Nor do I have some kind of "geriatric practice," as tx said in an earlier post on a different thread.

I am not biased toward the defense side. When I've represented criminal defendants in the past, I have just done my job the best I can in the context of a system loaded in favor of the State.

I don't like it that law enforcement witnesses will lie or shave the truth; I don't like it that I have to make some of them sweat till it runs off their noses in order to put the truth before a jury. In that respect, I am biased against such witnesses.

I don't like it when judges allow the most biased and un-educated new cops to testify as "experts," for instance, on what "criminals" do or think. I don't like it when judges will ignore the rules of evidence in order to allow truly inadmissable evidence to be placed before a jury. In that respect I am biased against biased judges.

I don't like it that our Court of Criminal Appeals will almost do back flips, changing the law as they go along, to secure and insure judgments of guilty; in that respect, I am biased against biased CCA judges.

Other than these, a general dislike of and bias against authoritarians at all levels of government, and a bias in favor of the Constitution, I have no biases at all.

My mistake - as many times as I have done it, I should have learned by now not to assume something. As you said to me earlier, when you thought I was a prosecutor - I'm sorry, I didn't mean to paint you as a defense lawyer if that offended you.

Rage,

If you want to make racist comments about my background to make yourself feel better, go ahead. Instead of redman, why not redskin, or prairie n-word, or any of the other racial epithet that are used for Native Americans. For the most part, Texas and Texans have always had racist attitudes towards Native Americans, with the exception of Sam Houston.

As far as always being an apologist for law enforcement or the state? I have commented elsewhere on this blog about unacceptable law enforcement conduct and stated that their actions were wrong.

If you can't understand what I have already said about racial profiling being wrong, unacceptable, and immoral, I don't know how else to explain it to you.

Again, show me one time where I have said that racial profiling was acceptable conduct - otherwise I would prefer that you send your own racist comments towards someone else.

I did not much care for the linked article. I am ex-Navy and have boated all of my life. There are rules for boating and night (like proper lights for example) and as long as you follow them you should be allowed to do so without harassment from authorities.

Does anyone know of any sort of protest happening at the court house against police brutality?

So, help me understand this correctly. Benson had his feet kicked out from underneath him and slammed face first onto the floor and I'm supposed to consider this news? As a Chicago Bears fan, I have painfully witnessed the same scenario play out every Sunday afternoon as Cedric Benson falls face first in the Chicago backfield for negative yardage. Where was his mother then? To Scott and the rest of the Cowboys fans, please convince Jerry Jones to bring Benson back to Texas.

So, help me understand this correctly. Benson had his feet kicked out from underneath him and slammed face first onto the floor and I'm supposed to consider this news? As a Chicago Bears fan, I have painfully witnessed the same scenario play out every Sunday afternoon as Cedric Benson falls face first in the Chicago backfield for negative yardage. Where was his mother then? To Scott and the rest of the Cowboys fans, please convince Jerry Jones to bring Benson back to Texas.

Ha! I'll get Jerry on the horn and see what I can do, 12:40! (I was half surprised he didn't sell the farm to get that tailback outta Arkansas.)

I can't remember where I read it, but one Chicago wag declared he believed Cedric Benson didn't resist arrest because in all his time with the Bears he'd never resisted a tackle!

But maybe being in a warmer climate, closer to mama and some home cooking, and running behind a big, bruising O-Line, would improve his attitude and performance. The Cowboys already have Marion Barber, so he doesn't have to be the main guy in Dallas.

I'll tell Jerry to go ahead and pull the trigger; if he does so, you'll know who to thank. :)

Rage is a typical lib. When he is shown the door by another's comment, he reverts to true leftist form by insulting the intelligence or education of his adversary, thereby nullifying anything that person says.

"You are ill equipped to handle serious discussions of these issues. Or, in terms you may understand (and this is not a race joke), you seem to have brought a knife to a gun fight," he quips.

Translation: I have no retort for your well pointed opinion and although I don't agree, I am wrong.

Holy cow, I better melt down all my guns and switch to pro-choice instead of pro-life.

See Grits' comments at the top of the thread re: liberal and conservative having no real meaning. After all, if you think Bush is conservative despote his enormous spending and growth in government and invasion of civil libberties, you've got another thing coming.

Merely Street Curb Justice, or more appropriately, dock-side justice. While I hope this overpaid entertainer was belligerent, requiring all incapacitation steps taken by law enforcement, I am afraid this is just another case of law enforcement officers punishing citizens. Examples of law enforcement punishment such as this reflect poorly on anyone involved in criminal justice. Not only must the offender suffer societal punishments (fines and reduction of freedoms), they are subjected to individual punishment via cops (beating, pepper spray, etc.). Pitiful and sickening.

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